Wisconsin 2023-2024 Regular Session

Wisconsin Senate Bill SB254 Compare Versions

Only one version of the bill is available at this time.

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3	3	2023 - 2024 LEGISLATURE
4	4	2023 SENATE BILL 254
5	5	April 20, 2023 - Introduced by Senators COWLES and BALLWEG, cosponsored by
6	6	Representatives MURSAU, BEHNKE, S. JOHNSON, KITCHENS, O'CONNOR and
7	7	STEFFEN. Referred to Committee on Natural Resources and Energy.
8	8	AN ACT to amend 15.347 (22) (b) 9. and 23.321 (5) (a); and to create 23.321 (2d)
9	9	of the statutes; relating to: a wetland assured delineation program, extending
10	10	the time limit for emergency rule procedures, providing an exemption from
11	11	emergency rule procedures, and granting rule-making authority.
12	12	Analysis by the Legislative Reference Bureau
13	13	This bill directs the Department of Natural Resources to establish a wetland
14	14	assured delineation program.
15	15	Current law generally prohibits the discharge of dredged or fill material into
16	16	a wetland unless a person is issued a wetland general permit or individual permit
17	17	by DNR. Under current law, a person who owns or leases land may use the following
18	18	methods to delineate the boundaries of a wetland in a manner recognized by DNR:
19	19	1) the person may request that DNR provide a wetland identification to determine
20	20	if wetlands are located on a parcel, or part of a parcel, that does not exceed five acres;
21	21	2) the person may have a third person prepare a wetland delineation and request
22	22	that DNR confirm the boundaries of the wetland as delineated by that third person,
23	23	based on DNR's on-site inspection of the land; or 3) with respect to nonfederal
24	24	wetlands, the person may have a qualified third person perform a wetland
25	25	identification delineating the boundaries of a wetland and request DNR to confirm
26	26	those boundaries, not based upon an on-site inspection of the land but rather based
27	27	on a review of maps, aerial photographs, surveys, wetland delineations, and
28	28	hydrophytic soil conditions. Under current law, nonfederal wetlands are wetlands
29	29	that are not under the jurisdiction of the federal government, and a qualified third
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35	35	SENATE BILL 254
36	36	person is an individual who has completed basic and advanced wetland training and
37	37	has a minimum of one year of field experience in wetland delineation.
38	38	The bill adds a wetland assured delineation program as a fourth method for
39	39	delineating the boundaries of a wetland in a manner recognized by DNR. Under the
40	40	program, a person may apply to DNR to be certified as an assured delineator. A
41	41	wetland delineation prepared by an assured delineator has the same effect as a
42	42	wetland identification or confirmation prepared by DNR, and a wetland delineation
43	43	prepared by an assured delineator need not be confirmed by DNR. Under the bill,
44	44	DNR must charge a $1,200 annual certification fee to an assured delineator, must
45	45	require a report of each wetland delineation an assured delineator prepares, and
46	46	may charge a filing fee not to exceed $20 for each report submitted. The bill provides
47	47	that a wetland delineation prepared by an assured delineator is effective for five
48	48	years from the date upon which the wetland delineation report is submitted to DNR.
49	49	This matches the effective period for wetland identifications and confirmations of
50	50	federal wetlands provided by DNR under current law.
51	51	The bill requires DNR to establish application and qualification requirements
52	52	for assured delineator certification but includes some minimum requirements, such
53	53	as at least five years of full-time professional field experience in wetland delineation
54	54	and completion of a wetland delineation training course based on the U.S. Army
55	55	Corps of Engineers wetland delineation manual. The bill also requires DNR to
56	56	charge an application processing fee of $500. The bill provides that an applicant
57	57	whose application is not approved may reapply and requires DNR to accept
58	58	applications no less than annually and at least during the period beginning
59	59	September 15 and ending November 30 for applicants who wish to be certified
60	60	beginning on March 15 of the next calendar year.
61	61	The bill requires DNR to review the performance of assured delineators on a
62	62	recurring basis and authorizes DNR to perform in-field audits of specific wetland
63	63	delineations performed by assured delineators. The bill allows DNR to investigate
64	64	any person's complaint that an assured delineator may be violating program
65	65	requirements. The bill allows DNR to gather—or to require a permit holder or
66	66	applicant to provide—additional wetland delineation data if DNR receives a
67	67	complaint alleging inaccuracies in a wetland delineation completed by an assured
68	68	delineator or if DNR finds inaccuracies in a wetland delineation report. If the
69	69	additional data show substantial evidence that a wetland delineation is inaccurate,
70	70	the bill allows DNR to use the data for regulatory decision-making, including
71	71	wetland permitting and exemption decisions. However, under the bill DNR may not
72	72	modify a permit or exemption decision solely on the basis of this additional data.
73	73	The bill allows DNR to revoke a person's certification as an assured delineator
74	74	if it finds the person did any of a list of actions, for example knowingly falsifying or
75	75	misrepresenting a wetland boundary. Under the bill, a person whose assured
76	76	delineator certification has been revoked is entitled to a contested case hearing.
77	77	Under the bill, DNR must consider a person who is approved or certified as an
78	78	assured delineator under an existing pilot program as certified as an assured
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82	82	SENATE BILL 254
83	83	For further information see the state fiscal estimate, which will be printed as
84	84	an appendix to this bill.
85	85	The people of the state of Wisconsin, represented in senate and assembly, do
86	86	enact as follows:
87	87	SECTION 1. 15.347 (22) (b) 9. of the statutes is amended to read:
88	88	15.347 (22) (b) 9. The possibility of a professional, whose wetland delineation
89	89	work is assured under the department of natural resources' wetland delineation
90	90	professional assurance initiative, performing a wetland delineation confirmation
91	91	requirements for certification as an assured delineator and other matters related to
92	92	the wetland assured delineator program under s. 23.321 on behalf of the department
93	93	(2d).
94	94	SECTION 2. 23.321 (2d) of the statutes is created to read:
95	95	23.321 (2d) WETLAND ASSURED DELINEATION PROGRAM. (a) Definition. In this
96	96	subsection, “assured delineator” means a professional wetland delineator who is
97	97	certified by the department under par. (c).
98	98	(b) Program. 1. The department shall establish a wetland assured delineation
99	99	program under which individuals may apply to the department to be certified as
100	100	assured delineators. Under the program, the department shall ensure that assured
101	101	delineators delineate wetlands consistent with the wetlands delineation manual
102	102	described under s. 281.36 (2m). The department may promulgate rules to implement
103	103	this subsection.
104	104	2. Under the program, a wetland delineation prepared by an assured delineator
105	105	has the same effect as a wetland identification or confirmation prepared by the
106	106	department under sub. (2) (b) to (d). A wetland delineation performed by an assured
107	107	delineator is not required to be confirmed by the department under sub. (2) (c) or (d).
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130	130	SECTION 2 SENATE BILL 254
131	131	3. The department shall require an assured delineator to submit to the
132	132	department a report of each wetland delineation the assured delineator prepares,
133	133	including all items required in applicable joint guidance from the U.S. army corps
134	134	of engineers and the department. The report is due no later than a date determined
135	135	by the department that allows sufficient time for the department's regulatory
136	136	decision-making or March 15, whichever is sooner following the date on which the
137	137	delineation is completed, unless an extension is approved by the department.
138	138	4. Under the program, assured delineators shall conduct assured wetland
139	139	delineations during the growing season. The growing season shall be determined in
140	140	accordance with the wetlands delineation manual described under s. 281.36 (2m)
141	141	and applicable supplements.
142	142	(c) Application. 1. A professional wetland delineator seeking to become
143	143	certified as an assured delineator shall submit a complete application and shall
144	144	follow the application procedures specified by the department.
145	145	2. The department shall, in consultation with the wetland study council,
146	146	determine what must be submitted by an applicant to constitute a complete
147	147	application. Once established, the department shall make those requirements
148	148	available on the department's website. The department may not determine an
149	149	application to be complete without submission of the application fee under par. (e)
150	150	1. a.
151	151	3. The department shall establish application and qualification requirements
152	152	for certification as an assured delineator, including at least all of the following:
153	153	a. At least 5 years of full-time professional field experience in wetland
154	154	delineation.
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183	183	b. Completion of minimum educational requirements or requirements for
184	184	commensurate experience, as determined by the department in consultation with
185	185	the wetland study council.
186	186	c. Completion of a wetland delineation training course based on the wetlands
187	187	delineation manual described under s. 281.36 (2m) and applicable regional
188	188	supplements for this state.
189	189	d. Submittal of at least 6 representative wetland delineation reports completed
190	190	within the 2 growing seasons preceding the date on which the application was
191	191	submitted.
192	192	e. Demonstration that the applicant can complete delineations and submit
193	193	them in compliance with program expectations as established by the department.
194	194	f. Other application and qualification requirements specified by the
195	195	department to ensure that the applicant is achieving the technical standards of the
196	196	program.
197	197	4. Status as an assured delineator is valid unless revoked under par. (d).
198	198	5. If the department determines that the applicant does not meet the minimum
199	199	qualifications to be approved as an assured delineator, the applicant may reapply in
200	200	a future application process.
201	201	6. The department shall accept applications no less than annually and at least
202	202	during the period beginning September 15 and ending November 30 for applicants
203	203	who wish to be certified beginning on March 15 of the next calendar year.
204	204	7. The department may consider previous conduct and performance in scoring
205	205	a subsequent application for an applicant whose prior certification under the
206	206	program was revoked under par. (d). The department may not approve an
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232	232	SECTION 2 SENATE BILL 254
233	233	application if the applicant's certification was revoked within 3 years of the
234	234	application date.
235	235	(d) Performance review, auditing, and revocation. 1. The department shall
236	236	review the performance of assured delineators on a recurring basis to ensure the
237	237	program standards and expectations are being met. As part of this review process,
238	238	the department may perform in-field audits of specific wetland delineations that
239	239	assured delineators have performed.
240	240	2. Upon a complaint submitted by any person to the department that an
241	241	assured delineator may be out of compliance with program requirements, the
242	242	department may investigate and gather information to determine if a violation of
243	243	program requirements has occurred.
244	244	3. The department may gather, or require a permit holder or applicant to
245	245	provide, additional wetland delineation data if a complaint is filed with the
246	246	department alleging inaccuracies in a wetland delineation completed by an assured
247	247	delineator or if the department finds inaccuracies in a report submitted under par.
248	248	(b) 3. If the additional data show substantial evidence that a wetland delineation is
249	249	inaccurate, this additional data may be used for regulatory decision-making,
250	250	including permitting and exemption decisions under s. 281.36. The department may
251	251	not modify a permit or exemption decision solely on the basis of additional data
252	252	gathered under this subdivision.
253	253	4. The department shall give notice to an assured delineator if the department
254	254	conducts an audit under subd. 1. or an investigation under subd. 2. or 3.
255	255	5. The department may revoke an individual's certification as an assured
256	256	delineator by providing to the individual written notice of the revocation and the
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285	285	reason for the revocation if it finds the individual did any of the following, taking into
286	286	consideration the type and frequency of infractions:
287	287	a. Knowingly took part in an activity that results in the violation of state or
288	288	federal wetland or waterway laws or regulations.
289	289	b. Knowingly falsified or misrepresented a wetland boundary.
290	290	c. Failed to delineate all wetland resources within a wetland delineation study
291	291	area.
292	292	d. Misrepresented another's work as his or her own.
293	293	e. Injured the reputation of another professional wetland delineator through
294	294	undocumented claims.
295	295	f. Failed to apply standard wetland delineation protocols in line with the
296	296	wetlands delineation manual described under s. 281.36 (2m) and applicable regional
297	297	supplements for this state.
298	298	g. Failed to implement the current state of the science, including techniques,
299	299	methods, and accurate reporting protocols.
300	300	h. Failed to meet continuing education expectations as set by the department.
301	301	i. Failed to submit an average of at least 3 delineation reports annually over
302	302	the prior 3 years, unless an exception is made by the department for extenuating
303	303	circumstances.
304	304	j. Failed to submit the annual certification fee under par. (e) 2. on or before
305	305	March 15 unless the department has granted an extension.
306	306	k. Failed to comply with any other program requirement established by the
307	307	department by rule.
308	308	6. Any individual who receives notice under subd. 5. that his or her certification
309	309	as an assured delineator has been revoked is entitled to a contested case hearing
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337	337	under ch. 227 if the individual requests the hearing within 30 days after receiving
338	338	the notice.
339	339	7. An individual whose certification as an assured delineator is revoked is not
340	340	precluded from delineating wetlands under sub. (2) (c) or (d).
341	341	(e) Fees. 1. Except as provided under subd. 3., the department shall charge the
342	342	following fees:
343	343	a. To an applicant under par. (c), an application processing fee of $500 to be
344	344	submitted with an application.
345	345	b. To an assured delineator, an annual certification fee of $1,200.
346	346	2. Except as provided under subd. 3., the department may charge an assured
347	347	delineator a filing fee of $20 for each report submitted under par. (b) 3.
348	348	3. The department may promulgate rules to increase the fees specified in subds.
349	349	1. and 2. only if the increase is necessary to meet the costs of the department in
350	350	performing the activities for which the fee is charged.
351	351	SECTION 3. 23.321 (5) (a) of the statutes is amended to read:
352	352	23.321 (5) (a) Except as provided in par. (b), a wetland identification provided
353	353	by the department under sub. (2) (b) and a wetland confirmation provided by the
354	354	department under sub. (2) (c) remain effective for 5 years from the date provided by
355	355	the department. A wetland delineation prepared by an assured delineator under
356	356	sub. (2d) remains effective for 5 years from the date upon which the wetland
357	357	delineation report under sub. (2d) (b) 3. is submitted to the department.
358	358	SECTION 4.0Nonstatutory provisions.
359	359	(1) The department of natural resources shall consider an individual who is
360	360	approved or certified as an assured delineator under a pilot program in effect on the
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387	387	SECTION 4
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389	389	effective date of this subsection to be certified as an assured delineator under s.
390	390	23.321 (2d).
391	391	(2) Using the procedure under s. 227.24, the department of natural resources
392	392	may promulgate rules authorized under s. 23.321 (2d) (b) 1. for the period before the
393	393	effective date of any permanent rules promulgated under s. 23.321 (2d) (b) 1.
394	394	Notwithstanding s. 227.24 (1) (c) and (2), emergency rules promulgated under this
395	395	subsection remain in effect until January 1, 2025, or the date on which permanent
396	396	rules take effect, whichever is sooner. Notwithstanding s. 227.24 (1) (a), (2) (b), and
397	397	(3), the department is not required to provide evidence that promulgating a rule
398	398	under this subsection as an emergency rule is necessary for the preservation of the
399	399	public peace, health, safety, or welfare and is not required to provide a finding of
400	400	emergency for a rule promulgated under this subsection.
401	401	SECTION 5.0Initial applicability.
402	402	(1) (a) Except as provided in par. (b), this act first applies to an individual who
403	403	submits an application under s. 23.321 (2d) (c) on the effective date of this subsection.
404	404	(b) Except for the initial application requirements under s. 23.321 (2d) (c), the
405	405	remainder of this act first applies to individuals described under SECTION 4 (1) on the
406	406	effective date of this subsection.
407	407	(END)
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